On Monday, a mostly united Supreme Court rejected Arizona’s efforts to require voters to provide documentary evidence of their U.S. citizenship in order to register to vote in federal elections. In Arizona v. Inter Tribal Council of Arizona, the Court affirmed the broad power of the federal government to preempt state laws governing the manner of conducting federal elections.
In this column, I shall discuss three notable features of the case. First, despite the ideological contentiousness of state voter identification requirements, the Court did not divide ideologically. Justice Antonin Scalia wrote the opinion for the 7-2 majority, which included the Court’s entire liberal wing as well as Chief Justice John Roberts and (with one relatively small exception, about which I shall have more to say below) Justice Anthony Kennedy.
Second, the majority opinion affirms a principle of broad federal preemption with respect to federal regulation of voting, thereby potentially paving the way for other rulings finding that Congress, rather than a state legislature, has set the ground rules for federal elections.
Third, however, the Court leaves open the possibility that states—including Arizona—could circumvent this week’s ruling. The majority said that Arizona could go to a different venue to challenge the federal regulations at issue in this case as inconsistent with state power to determine who is eligible to vote. Thus, while it is important for now, the ruling in Inter Tribal Council may end up as merely the first act of a longer drama.
What the Court Decided
Various provisions of the U.S. Constitution entitle people to vote without regard to particular criteria, such as race (the Fifteenth Amendment), sex (the Nineteenth Amendment), or payment of a poll tax (the Twenty-Fourth Amendment). Yet no provision specifies minimum qualifications for voting. Instead, subject to the foregoing and other prohibitions, the Constitution leaves to state law the determination of who may vote. While non-citizens were sometimes permitted to vote in the past, today, all states restrict voting in federal elections to U.S. citizens.
Arizona sought to enforce its citizenship restriction through a measure—adopted in 2004 by a referendum known as Proposition 200—that requires people to prove citizenship through documentary evidence in order to register to vote, and to present identification in order to vote on election day. Proposition 200 was partly fueled by two highly controversial views: Arizona’s anti-immigrant sentiment and the Republican Party’s perception that voting requirements needed to be tightened. Although Republicans justify the latter as a response to voter fraud, Democrats counter that individual-voter-level fraud is highly unusual and that tightening voting restrictions suppresses voting by Democratic-leaning constituencies.
These considerations made the Inter Tribal Council case politically explosive, but such matters were not directly at issue before the Supreme Court in the case. Instead, the case presented a narrow question of preemption: Did a provision of federal law requiring states to “accept and use” a federally-approved mail-in form to register to vote preclude Arizona from requiring documentary proof of citizenship beyond the sworn signature attesting citizenship that that the federal form required?
The Court said yes. The majority ruled that when the federal Election Assistance Commission (EAC) rejected Arizona’s application to include its additional documentation requirements on the federal form itself, it necessarily also rejected the possibility that Arizona could also require submission of that additional documentation along with the federal form. In lawyer’s jargon, the Court said that the EAC’s implementation of the federal statutory requirement preempted—that is to say, displaced—the state documentary requirements.
The Surprisingly Non-Ideological Breakdown of the Justices in This Case
Discussions of the Supreme Court that borrow categories from elective politics—conservative versus liberal, or Republican versus Democratic—necessarily over-simplify. Justices do not self-consciously advance any political program and while their ideological druthers do come into play, those druthers are legal, rather than strictly political. To be sure, there is substantial overlap between legal ideology and political ideology. That is why we can comprehensibly talk about conservative, liberal or moderate Justices. But it is important to remember that these words carry subtly different meanings when we talk about the Court, as opposed to elected officials.
Monday’s ruling in Inter Tribal Council should serve as a reminder of the distinction between legal and political ideology. On strictly political grounds, one would have predicted that the conservatives would side with Arizona and the liberals with the plaintiffs invoking federal law. Yet just last year, in Arizona v. United States, two of the Court’s conservative members (Chief Justice Roberts and Justice Kennedy) joined the liberals (minus Justice Kagan, who was recused) to find that federal law preempted most of another Arizona law—the one adding state penalties on top of the federal penalties for undocumented immigrants’ presence in the United States. Monday’s ruling in Inter Tribal Council was even more bipartisan. Whereas last year Justice Scalia read from the bench substantial portions of his sharp dissent from the Arizona case, this time he joined the Chief Justice, Justice Kennedy and the liberals (now including Justice Kagan), to underscore federal power.
Consider Inter Tribal Council alongside of other recent non-political breakdowns—including a decision on Monday in which Justice Clarence Thomas expanded jury trial rights in an opinion that was joined only by the Court’s four most liberal Justices, and Maryland v. King, in which Justice Scalia penned a dissent joined by the Court’s three most liberal members, in which they took issue with the majority’s ruling that DNA samples could be collected from arrestees. Taken together, these cases paint a picture of a Court wrestling with hard questions, and doing so without regard to political considerations.
Of course, that picture could easily be shattered—perhaps as early as tomorrow—should the Court divide along conventional political lines in the remaining cases involving race-based affirmative action, same-sex marriage and the Voting Rights Act. But for the moment, at least, Inter Tribal Council can be savored as a refreshingly apolitical piece of legal craft.
No Presumption Against Preemption in Federal Voting Law
Inter Tribal Council is also significant insofar as it announces what appears to be a new, general-purpose, rule for interpreting federal statutes.
The Court has sometimes applied a presumption against preemption. The basic idea is this: Under the Constitution’s Supremacy Clause, federal law trumps state law in cases of conflict; however, states also have reserved powers under the Tenth Amendment, and so a finding of preemption alters the state/federal balance; thus, courts should presume that an act of Congress does not preempt state law unless the language or expressed purpose of the federal law makes clear that Congress meant to displace state authority.
In Inter Tribal Council, Justice Scalia writes for the majority that whatever the scope of the presumption against preemption in other contexts may be, it does not apply when Congress acts pursuant to its power, under Article I, Section 4 of the Constitution, to “make or alter” the “Times, Places [or] Manner” of holding federal elections. Why not? Because, says Justice Scalia, when exercising such a power, Congress necessarily means to displace state law, as states have the default authority to determine the time, place and manner of holding elections.
That logic is hardly pellucid. One can concede the point that Congress meant to displace some state law in regulating elections, but still think that a presumption would come in handy in determining the scope of preemption.
Accordingly, Justice Scalia’s better argument—which he also makes—is that regulating federal elections is not a reserved power of the states. By contrast with areas in which states do have principal regulatory authority, the federal interest in regulating federal elections dominates. Hence, the argument goes, a finding of federal preemption does not alter the federal/state balance.
Even that argument is not airtight, however. After all, federal elections are typically run simultaneously with state elections, with respect to which states do have reserved powers. For this reason, Justice Kennedy—who otherwise joined Justice Scalia’s majority opinion—objected to the suggestion that Elections Clause cases provide special grounds for abandoning the presumption against preemption.
But interestingly, Justice Kennedy was open to the possibility that there should be no presumption against preemption in any cases. He proposed reading prior cases as merely urging the Court to be cautious before finding preemption, rather than reading them as establishing a presumption. And, Justice Kennedy pointed out that Justice Scalia himself had previously expressed even stronger skepticism of any presumption against preemption.
Inter Tribal Council could therefore be read to presage a general retreat from the presumption against preemption. If so, the case will be important across the range of federal statutory law.
More Litigation Coming: Arizona’s Revenge?
Finally, one should note what Inter Tribal Council expressly did not decide. Justice Scalia noted that while Congress may alter state law governing the manner of holding federal elections, states have the power to say who is eligible to vote. In order for a federal law (or a federal regulation implementing a federal law) to be constitutionally valid, it must only regulate the (time, place or) manner of holding elections. The Court implied that some ostensible “manner” regulations would be invalid because they fail to give effect to the state’s substantive eligibility requirements.
Arizona claimed that just that failure was occurring in the Inter Tribal Council case. The state argued that the federal form’s requirement that an applicant for voter registration must attest to his own citizenship is so ineffective a means of enforcing the citizenship requirement, that it renders the citizenship requirement void.
The Supreme Court did not reject that argument. Instead, the Court simply said that the argument was not properly before it in the Inter Tribal Council case. Thus, Arizona can still—and now probably will—make its argument that the EAC’s rejection of citizenship documentation unconstitutionally usurps the state’s power to set voting qualifications.
If, in future administrative appeals or litigation, Arizona succeeds in its challenge to the federal form, then the Inter Tribal Council decision will prove a hollow victory for the federal government and for the voters in Arizona and elsewhere, who are claiming a right to easy access to the voting booth.